54:0090(13)AR - - HHS, FDA, New Orleans, LA & NTEU Chapter 210 - - 1998 FLRAdec AR - - v54 p90
[ v54 p90 ]
The decision of the Authority follows:
54 FLRA No. 13
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
NEW ORLEANS, LOUISIANA
NATIONAL TREASURY EMPLOYEES UNION
April 30, 1998
Before the Authority: Phyllis Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members
Decision by Member Donald S. Wasserman for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ed W. Bankston filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Agency claims that the Arbitrator exceeded his authority when he rendered an award concerning the following issue:
"may union stewards on 'bank time'(1) elect to meet off-site without management concurrence?"
Award at 4. Specifically, the Agency claims that the Arbitrator made findings and ordered a remedy regarding "issues not grieved," i.e., regarding the adequacy of office space provided to the Union. Exceptions at 28.
For the reasons set forth below, we agree with the Agency and set aside the portion of the award that addresses an issue not placed before the Arbitrator.
II. Background and Arbitrator's Award
The Union is represented by four stewards who all work at the New Orleans District Office. Award at 12. The stewards scheduled a meeting for May 22, 1995, and requested "bank time" for purposes of the meeting. The Agency approved the request and provided a conference room as a meeting place for the stewards. Id. The stewards found the conference room unsuitable, and they arranged to go off-site to meet. On the morning of May 22, 1995, the District Director informed the stewards that they would be put in Absent Without Official Leave (AWOL) status if they met off-site. The four stewards nevertheless met off-site on the morning of the 22nd and returned to the work site at around noon. Id. at 13. On May 24, 1995, the stewards were put on AWOL for the morning of May 22. Id.
As a result of mediation, the AWOL charges were withdrawn. However, the question remained as to whether off-site meetings were appropriate. The matter was placed before Arbitrator Bankston for resolution.
The Union identified the issue to be: "Does the collective bargaining agreement as supported by past practice permit stewards to hold meetings off-site?" Id. at 4 (quoting Union Brief at 7). The Agency suggested that the issue should be:
may shop stewards leave their duty stations without the prior approval of their supervisors once their request for "bank time" is approved and the chapter president "authorizes" their absence from the job site, without obtaining the approval of management?
Id. (quoting Agency Brief at 1). Upon consideration of the parties' different versions, the Arbitrator framed the issue as noted supra Part I, i.e., "may union stewards on 'bank time' elect to meet off-site without management concurrence?" Award at 4.
In his decision, the Arbitrator rejected the Union's claim that off-site meetings on bank-time were a past practice. In doing so, the Arbitrator stated that there was no "unequivocal" practice of permitting off-site meetings on bank time in the absence of management concurrence. Id. at 21. Further, the Arbitrator determined that the failure to restrict off-site meetings in the collective bargaining agreement (CBA) did not create the right to such meetings. Id. at 23. He also rejected the Union's argument that the denial of off-site meetings on bank time constituted a violation of the stewards' statutory rights. Id. at 24. This last determination was based on his conclusion that the meeting did not constitute protected activity, since the off-site meeting was not sanctioned by past practice, the CBA or management concurrence. Id.
The Arbitrator determined that the "crux of the matter" was the appropriateness of the office space provided to the union for its meeting. Id. at 24-25. Thereupon, the Arbitrator analyzed sections of the CBA involving the Agency's obligation to provide suitable office space to the union. Id. at 26-28.
The Arbitrator's Award ultimately rejected the Union's grievance regarding off-site meetings on bank time without the concurrence of management. Id. at 29-30. In his "findings of fact," however, the Arbitrator found a violation of the contractual requirements of Article 10 to provide adequate office space. Id. at 29. In his Award, the Arbitrator determined that "[w]ith respect to the finding that the Agency is in violation of the Agreement by its willful failure to provide union office space, the grievance is to be remedied" by the order to the Agency to "permanently 'provide reasonable, adequate, and secure office space' to the Union" within 30 days. Id. at 30.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that
[t]he Arbitrator's Award is deficient pursuant to 5 U.S.C. § 7122(2) on...grounds similar to those applied by Federal courts in private sector labor-management relations, namely, on the grounds that the award exceeded the arbitrator's authority because the arbitrator resolved an issue not submitted to arbitration.
Exceptions at 24. Specifically, the Agency argues that the Arbitrator erred when he found a violation of Article 10 regarding office space, when that matter was not included in the issue nor briefed by the parties. Id. at 25.
B. Union's Opposition
The Union acknowledges that "[a]n Arbitrator's decision may be held deficient when the arbitrator exceeds his authority by resolving an issue not submitted to him." Opposition at 6. However, the Union contends as follows:
Arbitrator Bankston determined that the Union could not meet off-site without management concurrence. His decision was grounded in Article 10 of the Collective Bargaining Agreement which requires that Agency to provide the Union with suitable, permanent office space. The arbitrator found that the "matter of office space is crucial to the issue" and identified the gravamen of the case as "just what sort of space is it to which the Union is entitled under the Agreement (Opinion and Award 24, 26)." He found that the Union had agreed to utilize union office space provided by the contract and that agreement precluded the need and the right to hold meetings off site.
Id. at 4. In other words, the Union contends that the Arbitrator properly looked at the Agency's compliance with its general obligation to provide adequate office space in connection with the Union's meetings off-site or on-site. The Union contended that the Arbitrator "found that the Union had agreed to utilize union office space provided by the contract and that agreement precluded the need and the right to hold meetings off-site." Id.
The Union states that the office space issue was litigated before the Arbitrator, citing the presentati